DIVORCE AND COPYRIGHT:
Getting Back…Or Losing…Rights That You Thought You Lost…Or
Had

Ivan Hoffman, B.A.,
J.D.

The matters discussed in this article are
speculative.There are no reported cases to look to which are on “point.”
Moreover, I am writing this article not as an advocate for any point of view or
position but to explain. I leave advocacy for when I have a particular client to represent.

Here is the situation:

Songwriter, screen writer, director of film or
television shows, recording artist, painter, writer or similar creative party
(for simplicity in this article, all such creative parties are called “author”)
owns rights in and to certain works.These rights can be rights of copyright or
rights in contracts whereby the author relinquished his or her copyright rights
in exchange for contract payments such as royalties, fees, advances and the
like.The works
can be musical compositions, sound recordings (provided they were first recorded
after February 15, 1972), books, works of art, screen plays and similar
works.

As things would go in this “hypothetical,” the
author and his or her spouse get divorced.(Would that it were only a “hypothetical.”) As
part of the divorce contest, the spouse claims rights in those said copyright or
contract rights and, pursuant to a property settlement agreement approved by the
court, the spouse is granted rights in and to the said copyrights or contract
rights.

However, depending upon the facts and
circumstances of the given case, the transfer, in the form of the said
agreement, by the author of rights in and to the said copyrights or contract
rights may be subject to being “taken back” in whole
or in part by either the author or the children or subsequent spouse of the
author, at least as to the rights of copyright.And even if the said
agreement is not terminable, the rights to terminate transfers that may have
been made by the author (or in some instances by others) may be exercised by
parties other than the spouse to whom the rights were transferred, operating as
a de facto termination of the divorced spouse’s rights at least as to
those agreements. Whether this is so or not depends
upon the operation of the federal copyright law on that transfer to the
spouse.In
particular, the said law contains several instances in which those rights may be
able to be taken away from the spouse who received those rights in the divorce
settlement agreement.

These situations are very fact-specific and
complex in analysis.Below are some, but certainly not all, of the examples.See if any of these
fit your or your client’s scenario.

Scenario 1.

If the copyrights that were transferred were
first registered in theUnited
States before January 1, 1978, then those
copyrights were subject to the “old” copyright law regarding renewal
rights.Before
that date, copyrights existed for 2 separate terms: an initial term of 28 years
and then a renewal term that previously was also 28 years but, effective January
1, 1978, was extended to 47 years and is now 67 years.For the sake of
simplicity in a very complex situation, I will leave out of this article issues
related to the need to file renewal copyright applications for some of these
copyrights.

So the scenario plays out this way: the
divorce settlement covered these “old” copyrights and after the divorce, the
renewal terms arose.

17 USC Section 304 of the copyright law
provides which parties are entitled to renew the copyright into the renewal
term.For the
sake of this article, the relevant section is below:

(C) In the case of any other copyrighted work, including a
contribution by an individual author to a periodical or to a cyclopedic or other
composite work —

(i)the
author of such work, if the author is still living,

(ii)the
widow, widower, or children of the author, if the author is not living,

(iii)the
author's executors, if such author, widow, widower, or children are not living,
or

(iv)the
author's next of kin, in the absence of a will of the author, shall be entitled
to a renewal and extension of the copyright in such work for a further term of
67 years.

Federal cases interpreting this statute have
called the rights of the transferee (in this instance, the spouse to whom the
rights were transferred by the settlement agreement) in and to the renewal
rights, as merely an “expectancy.”Miller Music Corp.
vs. Charles N. Daniels, Inc., 362 U.S. 373 (1960)This has been interpreted to mean that if the author entered into an
agreement in which the rights to the renewal copyrights were granted to another
party, if the author is alive at the commencement of the renewal period, that
grant will be held valid since only the author has the right to the renewal term
but that right is subject to the rights of the transferee party as contained in
the transfer agreement.In such an instance, it is likely that the
spouse to whom the rights were transferred would retain the renewal rights to
such copyrights.

However, if the author died prior to the
commencement of the renewal period, federal law pre-empts state law including,
presumptively, the divorce settlement agreement approved by the state
court.That has
been the ruling in cases dealing with a testator’s wishes conflicting with the
federal law.Broadcast Music, Inc. vs. Roger Miller Music, Inc., 396
F.3rd 762 (6th Cir, 2005); Larry Spier, Inc. vs. Bourne
Co., 953 F2d 774 (2nd Cir. 1992).If that same
argument is extended to divorce agreements, that may mean that if the author
died prior to the commencement of the renewal period, the transfer of renewal
rights to the spouse in the divorce settlement agreement might be ineffective
during the renewal period since federal law provides that the children of the
author are the only parties entitled to the renewal rights. The spouse who
received these copyrights in the settlement agreement is, by definition, not the
widow or widower because of the divorce although there may be a new spouse who
would thus be the widow/widower if the author and this new spouse were married
at the time the author died.In Saroyan v. William
Saroyan Foundation, 675 F. Supp. 843, 844 (S.D.N.Y 1987) the Court ruled
that a bequest of renewal rights to a trust was not effective because the
testator had died before the renewal rights had vested.

As a
practical matter, since renewal rights issues apply only to pre-January 1, 1978
copyrights as indicated above, any renewal terms will of necessity have started
no later than December 31, 2005 (i.e. December 31, 1977 is the last date of
copyright for “old” copyrights, to which you add 28 years to get the date of the
onset of the renewal term).In Stone vs.
Williams (970 F. 2d. 1043), the Court held that a daughter of Hank Williams
had the right to claim the renewal rights even though her claim was very late in
being presented but she could not recover money for the exploitation of the
compositions preceding the 3 year limitations period.However, in Tomas v Gillespie, 385 F Supp 2d 240, 73 (S.D.N.Y.
2005), the Court barred the action to assert renewal rights because those rights
arose beyond the 3 year statute of limitations.

Scenario 2.

This scenario also deals with “old”
copyrights, i.e. those registered before January 1, 1978.Even if the author
was alive at the time of the commencement of the renewal period, the transfer
represented by the settlement agreement may still be terminable under a given
set of circumstances.This is the “second bite at the apple.”The first of these circumstances is if the settlement
agreement was executed before January 1, 1978.

The same section of the copyright law further
provides in part as follows:

(c) Termination of Transfers and Licenses Covering Extended
Renewal Term. — In the case of any
copyright subsisting in either its first or renewal term on January 1, 1978,
other than a copyright in a work made for hire, the exclusive or nonexclusive
grant of a transfer or license of the renewal copyright or any right under it,
executed before January 1, 1978, by any of the persons designated by subsection
(a)(1)(C) of this section, otherwise than by will, is subject to termination
under the following conditions:

(1) In the case of a grant executed by a person or persons
other than the author, termination of the grant may be effected by the surviving
person or persons who executed it. In the case of a grant executed by one or
more of the authors of the work, termination of the grant may be effected, to
the extent of a particular author's share in the ownership of the renewal
copyright, by the author who executed it or, if such author is dead, by the
person or persons who, under clause (2) of this subsection, own and are entitled
to exercise a total of more than one-half of that author's termination
interest.

(2) Where an author is dead, his or her termination interest
is owned, and may be exercised, as follows:

(A) The widow or widower owns the author's entire
termination interest unless there are any surviving children or grandchildren of
the author, in which case the widow or widower owns one-half of the author's
interest.

(B) The author's surviving children, and the surviving
children of any dead child of the author, own the author's entire termination
interest unless there is a widow or widower, in which case the ownership of
one-half of the author's interest is divided among them.

(C) The rights of the author's children and grandchildren
are in all cases divided among them and exercised on a per stirpes basis
according to the number of such author's children represented; the share of the
children of a dead child in a termination interest can be exercised only by the
action of a majority of them.

(D) In the event that the author's widow or widower,
children, and grandchildren are not living, the author's executor,
administrator, personal representative, or trustee shall own the author's entire
termination interest.

(3) Termination of the grant may be effected at any time
during a period of five years beginning at the end of fifty-six years from the
date copyright was originally secured, or beginning on January 1, 1978,
whichever is later.

What the above sections mean is that, at a
time commencing
56 years from the date of the original copyright (in this example,
56 years from January 1, 1978 is not relevant) and during a 5 year window
commencing at that time, the transfer to the divorced spouse may be subject to
being terminated by the author if the author is alive or, if the author is
deceased, by the children of the author (again, the original transferee is by
definition not the spouse, although there may be a new spouse who would then be
the widow or widower if the parties were married at the time the author
died).

So let me give an example.Copyrights in 1960
and, as part of the divorce agreement, the author’s copyrights are transferred
to the spouse.56 years from 1960 is 2016.During a 5 year window commencing on the date
of the respective copyrights in 2016, it is possible that the author, if the
author is still alive or if not alive, the author’s children and widow/widower,
may be able to terminate the transfer to the original spouse.(What seems likely is that those parties can terminate the
grant to other parties the author made, to the exclusion of the divorced
spouse.)Appropriate notice must be given no
later than 2 years nor earlier than 10 years prior to the effective date of
termination.

Again, for
simplicity sake, I have not discussed the other potential parties who may be
statutory successors.

Further, the statute provides that no
agreement, including possibly a divorce settlement agreement, that purports to
give up these rights, is likely to be held valid.Section 304 goes on to state:

(5) Termination of the grant may be effected notwithstanding
any agreement to the contrary, including an agreement to make a will or to make
any future grant.

Scenario 3.

In this scenario, the copyrights that are
involved in the divorce settlement have first been copyrighted after January 1,
1978.As
to these copyrights, there were no longer any renewal rights involved and
copyrights last for the life of the author plus originally 50 and now 70
years.

That said, however, there are provisions that
allow for the termination of a transfer made after January 1, 1978.17 USC Section 203
provides in part:

(a) Conditions for
Termination. — In the case of any work other than a work made for hire,
the exclusive or nonexclusive grant of a transfer or license of copyright or of
any right under a copyright, executed by the author on or after January 1, 1978,
otherwise than by will, is subject to termination under the following
conditions:

(1) In the case of a grant executed by one author,
termination of the grant may be effected by that author or, if the author is
dead, by the person or persons who, under clause (2) of this subsection, own and
are entitled to exercise a total of more than one-half of that author's
termination interest. In the case of a grant executed by two or more authors of
a joint work, termination of the grant may be effected by a majority of the
authors who executed it; if any of such authors is dead, the termination
interest of any such author may be exercised as a unit by the person or persons
who, under clause (2) of this subsection, own and are entitled to exercise a
total of more than one-half of that author's interest.

(2) Where an author is dead, his or her termination interest
is owned, and may be exercised, as follows:

(A) The widow or widower owns the author's entire
termination interest unless there are any surviving children or grandchildren of
the author, in which case the widow or widower owns one-half of the author's
interest.

(B) The author's surviving children, and the surviving
children of any dead child of the author, own the author's entire termination
interest unless there is a widow or widower, in which case the ownership of
one-half of the author's interest is divided among them.

(C) The rights of the author's children and grandchildren
are in all cases divided among them and exercised on a per stirpes basis
according to the number of such author's children represented; the share of the
children of a dead child in a termination interest can be exercised only by the
action of a majority of them.

(D) In the event that the author's widow or widower,
children, and grandchildren are not living, the author's executor,
administrator, personal representative, or trustee shall own the author's entire
termination interest.

(3) Termination of the grant may be effected at any time
during a period of five years beginning at the end of thirty-five years from the
date of execution of the grant; or, if the grant covers the right of publication
of the work, the period begins at the end of thirty-five years from the date of
publication of the work under the grant or at the end of forty years from the
date of execution of the grant, whichever term ends
earlier.

Thus, under these provisions, various
scenarios can arise and among these scenarios are below.For the sake of
simplicity for these scenarios, I will again omit a discussion of the other
potential statutory successors and posit that a settlement agreement was entered
into January 1, 1980 (round numbers are easier to do the arithmetic) and further
posit that the 35 year from the date of execution of the grant provision applies
and not the 40 years.In such an instance, the right to terminate the transfer exists during a
5 year window commencing January 1, 2015, subject to the notice and other
provisions in the statute.Two sub-scenarios may apply:

If the author is alive at the time of 35 years from the
January 1, 1980 settlement agreement.

In this instance, the author may be able to
terminate the transfer, subject to the notice and other requirements of the
statute.

If the author is not alive at the time of 35 years from
January 1, 1980 settlement agreement.

In this instance, the children of the author
(again, the transferee spouse is not the widow or widower but there may be a new
spouse who is the widow or widower if the parties were married at the time the
author died) may be able to terminate the transfer, subject to the notice and
other requirements of the statute.

As with the section 304 termination, these
rights cannot be given away until they vest in the appropriate party.

As you will note, in both sections, the “transfer” needs to
have been “executed.”If there was no marital settlement agreement per se and the transfer took
place via court judgment, then perhaps there is no agreement to terminate.If the court
judgment merged all the provisions of the agreement, perhaps there is no
agreement to terminate.There may be other reasons why the
divorce agreement itself may not be terminable. But again, even if
the divorce settlement agreement is not in itself terminable, to the extent that
parties other than the divorced spouse have termination rights, any agreements
that the author (or in some instances other parties) entered into regarding
copyright rights could be terminated only by those parties and since the
divorced spouse is not one of those parties, this can have the effect of
terminating the divorced spouse’s rights in those agreements.

Who Gets What Share?

The provisions in section 304 (governing
pre-1978 agreements) are unclear as to who gets what share of any renewal
rights.Again,
the issues related to renewal rights may not be applicable to very many
situations as of now but I will discuss these issues briefly anyway.

Section 304 (a) does not contain any express
language allocating how the shares (assuming the author has died at the time of
renewal) are to be allocated.However, section 304 (c) states that, as
to termination rights, the widow gets 50% and the other 50% is to be divided
among the children on a per stirpes basis with any children of a deceased child
of the author stepping into the position of their deceased parent.In Broadcast Music, Inc. vs. Roger Miller Music, Inc., 396
F. 3d. 762 (6th Cir. 2005), supra, the Court held that the 50% to the widow and 50%
to the children collectively rule (as in 304 (c)) applies.This issue has not
yet been decided by other circuits and, given the time issues about
“renewal” rights, this issue may remain clouded.

Community Property Issues

Assuming that copyrights and rights of
copyright are community property (but see discussion
below) , then overarching the above issues are issues related to
the rights of the spouse in the community property that are the copyrights
or the agreements related to the copyrights.And in this regard, the question is whether
the federal copyright law pre-empts state laws dealing with community property
under the Supremacy Clause of the Constitution (Article VI, Clause 2).And in the latter
regard, the question is whether these community property issues are actually
issues subsumed under the copyright law. So if you think the above issues are
complicated, wait until you read about these community property issues.

The initial question is whether these
community property issues are actually issues subsumed under the copyright
law.Section
301 of the copyright law provides in part:

(a) On and after
January 1, 1978, all legal or equitable rights that are equivalent to any of the
exclusive rights within the general scope of copyright as specified by
section
106 in works of
authorship that are fixed in a tangible medium of expression and come within the
subject matter of copyright as specified by sections
102 and 103, whether created before or after that date and whether
published or unpublished, are governed exclusively by this title. Thereafter, no
person is entitled to any such right or equivalent right in any such work under
the common law or statutes of any State.

In Hisquierdo vs.
Hisquierdo (439 U.S. 572 (1979), the United States Supreme Court
stated:

The pertinent questions are whether the right as asserted
conflicts with the express terms of federal law and whether its consequences
sufficiently injure the objectives of the federal program to require
nonrecognition. (439 U.S. 572, 583)

That case dealt with whether or not a divorced
spouse had a community property interest in benefits under the Railroad
Retirement Act related to the spouse’s husband having worked for the railroads
during the marriage.The RRA had an express provision stating that the spouse did not have an
interest in those benefits under the RRA.The United States Supreme Court ruled that
because of that express exclusion which represents a clear intent of Congress to
exclude a spouse from ownership of the benefits, for the spouse to have such a
community property interest would conflict with federal law and thus the
community property laws did not apply and the widow had no interest as community
property.This
case, however, dealt with that particular provision in the RRA whereas the
copyright law in regard to renewal and termination issues not only does not
exclude the widow/widower but in fact expressly includes the widow/widower.Therefore, because
there are “2 laws” which deal with a widow/widower’s rights (copyright and
community property laws), is there a conflict and if so, which law
controls?

Rodrigue vs.
Rodrigue (55 F.S.2d 534 (E. District La. 1999) is very instructive but not
determinative since it is not a renewal/termination case. See discussion below about
the appellate version of this case. The issue was whether certain
“themes” used by the husband in his paintings after
the divorce were also community property and whether the wife was a co-owner of
all rights therein (as derivative works) under section 201 (d) of the Copyright
Act (quoted above).The Court summarized the claims as follows:

George asserts that there is an irreconcilable conflict
between copyright law and community property law with respect to both initial
vesting of the copyright and any alleged transfer, and therefore Louisiana
community property law is preempted by federal copyright law. George contends
that after the copyrights vested in him initially under federal law, there
was no subsequent transfer of the copyrights, or any interest in them, to
Veronica because: (1) no provision of Louisiana community property law
authorizes such a transfer; and (2) such an involuntary transfer is prohibited
by 17 U.S.C. § 201(e). Veronica contends that the application of community
property law does not pose any conflict with federal copyright law because
federal law contemplates that, after vesting initially in the author, copyrights
can be transferred by operation of law, and because application of community
property law does not stand as an obstacle to the purposes of federal copyright
law.

The Court went on:

Historically, however, all legal issues relating to families
have been the exclusive province of state law not federal law. Hisquierdo
v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979). When
there is conflict between state family law and federal law, state law is not
lightly set aside. Id. Preemption of state law may be necessary when
Congress has positively required preemption by direct enactment.
Id. However, a "mere conflict in words" between federal law and state
family and family property law is not sufficient grounds for overturning state
law. Id. Rather, "family property law must do `major damage' to `clear
and substantial' federal interests" before state law is
overridden. Id. Under the test described in Hisquierdo, in
order for federal law to preempt state family law, (1) there must be some sort
of express conflict between the two; and (2) the state law must do "major
damage" to "clear and substantial" federal interests. Id.

The Court continued:

On its face, § 301 [see
above] does not
expressly preempt community property law because community property law does not
necessarily purport to provide rights "equivalent" to those specified by the
Act. However, there are specific areas of potential conflict between the Act and
Louisiana community property law that result in preemption.

And:

"Copyright in a work created on or after January 1, 1978
subsists from its creation ...." 17 U.S.C. 302(a). A work is "created" when it
is "fixed in a copy ... for the first time ... [W]here a work is prepared over a
period of time, the portion of it that has been fixed at any particular time
constitutes the work as of that time, and where the work has been prepared in
different versions, each version constitutes a separate work." 17 U.S.C. § 101.
A copyright comes into existence as soon as an "original"[8]work is "fixed in any tangible medium of
expression" (as opposed to a not-yet-manifested idea that is not copyrightable).
17 U.S.C. § 102. Consequently, a copyright attaches in favor of the author at
each step of creation — each word, musical note or brush stroke — from the first
expression of the work. Ownership cannot vest simultaneously in both the author
alone and in the community. Community property law may not defeat the clearly
expressed intention of Congress by attributing copyright ownership to a
nonauthor at the time of creation. Any community property ownership provision,
such as Article 2338, that permits copyright ownership to vest initially in
anyone other than the author is therefore preempted.[9]This view is consistent with the
Constitutional provision allowing "to Authors ... the exclusive Right ...."
Article 2338 not only literally conflicts with the Act (under part one of
the Hisquierdo test), it does major damage to the substantial federal
interest in providing exclusive rights to authors. Consequently, a copyright is separate property of the author
spouse upon its creation.[10] [emphasis
added]

The wife argued that the copyright law allows
for the transfer “by operation of law”and that this was the rationale used by the
California Court of Appeal in In Re: Marriage of
Worth, 195 Cal. App. 3rd 768
(1987).

So let me discuss the Worth case here before circling back to Rodrigue.

In the Worth case,
the California Court of Appeal ruled that the copyright in a work created by an
author during the term of the marriage was community property and that such
community property laws were not pre-empted by federal copyright laws.The Court ruled that
although the initial copyright rests with the author under the copyright law,
the same copyright law provides that rights may be transferred “by operation of
law” and thus the Court found that the copyright law, by implication, recognized
and allowed such community property rights to exist under the copyright
law.Therefore,
in such an instance, the spouse’s interest in the said work was already as to an
undivided half and accordingly, if the above rights exist (renewal rights or
termination of transfer rights), they would likely exist only as to the author’s
share of any copyrights transferred to the spouse.This was not a renewal/termination of transfer case and thus
the issues about the statutory successors was not before the
Court.

But there are issues raised by the Worth decision including those discussed in Rodrigue, among which are:

The Copyright Act, section 201 (a), states in
part that:

Copyright in a work protected under this title vests
initially in the author or authors of the work.

But California community property laws state
in part:

Family Code section
760. Except as
otherwise provided by statute, all property, real or personal, wherever
situated, acquired by a married person during the marriage while domiciled in
this state is community property.

Family Code section
2550. Except upon the written agreement of the parties, or on oral
stipulation of the parties in open court, or as otherwise provided in this
division, in a proceeding for dissolution of marriage or for legal separation of
the parties, the court shall, either in its judgment of dissolution of the
marriage, in its judgment of legal separation of the parties, or at a later time
if it expressly reserves jurisdiction to make such a property division, divide
the community estate of the parties equally.

That would mean that, from the moment of
creation in a marriage, any copyrightable work is deemed community property and
thus the non-author spouse is entitled to a one-half interest therein.Although, as
indicated above, a transfer of such an interest can take place “by operation of
law,” the foundational ownership right under state law appears to be in conflict
with federal copyright law.

In Rodrigue, the
Court discussed section 201 (e) which states:

(e) Involuntary Transfer. — When an individual
author's ownership of a copyright, or of any of the exclusive rights under a
copyright, has not previously been transferred voluntarily by that individual
author, no action by any governmental body or other official or organization
purporting to seize, expropriate, transfer, or exercise rights of ownership with
respect to the copyright, or any of the exclusive rights under a copyright,
shall be given effect under this title, except as provided under title
11.

The Court then analyzed various legal theories
dealing with the issue of “involuntary” transfer and concluded that merely
because parties are married and reside in a community property “regime” does not
constitute a “voluntary transfer.”

Moreover, the owner of the rights of copyright
(or a given right) is the sole party entitled to exploit the same.A spouse not the author has no such
rights.However, under state community
property law, each party (thus including the non-author party) is entitled to an
undivided equal share and that includes the right to exploit the same (subject
to accounting to the other party).That, too, appears to be in conflict.Could the non-author
party make a deal for the exploitation of the copyrights?(see discussion in
Rodrigue at 544-545)

The Rodrigue court concluded that this matter
was best left to Congress to decide but that the claims of the wife as to a
community property interest were in direct conflict with federal law and thus
could not stand.

At present, however, the conflict between Louisiana's
community property law and the Act is irreconcilable. To deem copyrights to be
community property would risk inflicting major damage on the Act's goals of
predictability and certainty of copyright ownership, national uniformity, and
avoidance of the practical difficulties of determining and enforcing an author's
rights under the differing laws of the various states.

On
appeal, the Fifth Circuit (at 218 F.3d 432 (2000)) agreed with the district court’s
analysis of the issues related to conflict between federal and Louisiana state
laws but concluded that there were provisions in the state laws that were not in
conflict with the copyright laws including that even though the author-husband
was the sole owner of all rights in the copyrights and thus the sole party
entitled to manage the same, Louisiana state law allowed for the non-author
spouse to share in the “economic benefits” from the copyrights.The Court
stated:

Notably absent from
the Copyright Act's exclusive sub-bundle of five rights is the right to enjoy
the earnings and profits of the copyright. Nothing in the copyright law purports
to prevent non-preempted rights from being enjoyed by the community during its
existence or thereafter by the former spouses in community as co-owners of
equal, undivided interests.

However, to date no court has decided whether
community property survives the renewal or termination of transfer issues under
federal law.Among the many issues involved in this area is whether the said renewal
right (and presumptively the termination right) is an expectancy, as the
language of the federal cases states (see above or Brown ), or is a contingent interest. In the case of In Re: Marriage of Brown (15 C. 3d. 838) the California
Supreme Court ruled that benefits that had not yet vested were not
“expectancies” but “contingent property interests” and thus were community
property. If it is merely an expectancy, then it may not be
community property and in such an instance, if the author dies prior to the
vesting of the renewal period (or presumptively the termination right), one
could argue that the widowed spouse would not be entitled to a community property share of the renewal/termination
rights since it was not community property and thus would only be entitled to
the statutory successor share which, if there were children of the author, would
thus only be as to one half.Thus there would be
no conflict between state and federal law. On
the other hand, if the right in the renewal period/termination rights is not a
mere expectancy but a contingent interest, then perhaps it is community property
and thus the termination and renewal rights might exist only as to the author’s
half.But that
would appear to conflict with federal law since it would provide the widow with
50% as community property and then 50% of the other
50% as a statutory successor (the other 50% of going to the children of the
author.

In specific
reference to the renewal/termination issues, Congress has not been silent on the
rights of widows/widowers (and by definition, spouses).Thus, under the Hisquierdo rationale, perhaps the federal law would
pre-empt the state laws in regard to the rights of those parties.

There are likely to be other community
property issues but as you can see, they would all depend upon a reconciliation
of the state and federal laws.

The above rights do not apply where the original creation was
done as a work made for hire.17 USC Section 304 (a) (i) (B). (Read “Work
Made For Hire Agreements” on my site.Click on “Articles for Writers and
Publishers.”)In such an instance, all rights including all renewal rights, belong
solely to the party commissioning the work made for hire.So, for example, if
a film director did his or her work as a work made for hire, which is common in
the film and television industries, the renewal rights and termination of
transfer issues do not arise insofar as the relationship between the creator and
the said commissioning party.The commissioning party is deemed the “author”
of the work and thus the above rights do not apply to the creative
party.

Why Have These Issues Not Yet Arisen?

There may be some explanations for the reason
the courts are not flooded with these matters.

In addition to the explanation that settlement
agreements and decrees may not have been properly prepared and no one is
yet aware of the issues, there is an additional explanation.Due to the long
times involved in the termination of transfer provisions, the rights have not
yet arisen or the parties that now possess those rights may not be aware of them
since they were not parties to the original transaction.For example, as
indicated above, the termination of transfer provisions for pre-January 1, 1978
copyrights do not arise for 56 years from the date of the original
copyright.For post-January 1, 1978 agreements, the rights do not arise until at
least 2013.

Conclusion

As you might expect, all this is extremely
fact-specific and a detailed analysis is required in each instance to see
whether any rights exist. In the end, as the Rodrigue court suggests, this will likely have to be
resolved by Congress. Keep in mind
that all this is quite speculative since much of the copyright law in regard to
these matters has not been tested in the courts.

Consult an experienced intellectual property
attorney as well as a divorce attorney about these matters.

This article is not legal advice and is not
intended as legal advice.This article is intended to provide only
general, non-specific legal information.This article is not intended to cover all the
issues related to the topic discussed.The specific facts that apply to your matter
may make the outcome different than would be anticipated by you.This article is
based on United States
law.You should
consult with an attorney familiar with the issues and the laws of your
country.This
article does not create any attorney client relationship and is not a
solicitation.

****************

No portion of this article may be copied,
retransmitted, reposted, duplicated or otherwise used without the express
written approval of the author.

FOR MORE INFORMATION INCLUDING IF
YOU WOULD LIKE TO BE PLACED ON MY MAILING LIST TO RECEIVE NOTICES OF NEW
ARTICLES AND OTHER RELATED INFORMATION: